The Legal Complexities of Surrogacy

Olympian Tom Daley and his husband Dustin Lance Black made a romantic announcement on Valentine’s Day this year – revealing the news that they are expecting a child, presumably via a surrogate.

Surrogacy is an increasingly common option, both for heterosexual couples who are struggling to conceive, and for same-sex couples. In recent years, Elton John and his husband David Furnish have used surrogates to have their two sons, as has the singer Ricky Martin, for his twin boys. But surrogacy is by no means for celebrity couples alone – it is an option open to many.

Surrogacy can be very successful and can bring great joy to all of the parties involved. However, it is a complex topic and it can be emotionally taxing and legally complicated. Here are some of the things you need to know if you are considering engaging a surrogate to carry a child for you.

What is surrogacy?

Surrogacy sees a child carried through pregnancy by a woman on behalf of another couple, after agreeing that parental responsibility for the child can be transferred to the intended parents at birth.

There are two types of surrogacy – traditional surrogacy, with the surrogate using her own egg fertilised with the intended father's sperm. Or gestational surrogacy, with the surrogate carrying the intended parent's genetic child conceived through IVF.

Is it legal?

Surrogacy is legal in the UK, but it is illegal to advertise for a surrogate or as a surrogate, or to give or receive money as part of the process. If you opt for an international surrogate, the scenario is far more complex and it is vital that you seek specialist legal advice.

Do I automatically become the legal parent once baby is born?

The surrogate mother, whether or not she is biologically related to the baby, is treated as the child’s legal mother until the Family Proceedings Court makes a Court Order to transfer parental responsibility to the commissioning parents. The surrogate mother cannot simply hand over her parental responsibility, and if the surrogate mother is married, her husband or civil partner will be treated, in legal terms, as the father of the child until the Court Order is in place.

Clearly, there are potential issues here for prospective parents to be cautious of. You may have an agreement and an amicable relationship with a surrogate mother, but if your relationship deteriorates, or if your surrogate changes her mind, your surrogacy agreement is neither legally binding nor enforceable via the UK Court. As the legal mother, the surrogate mum will be named on the baby’s birth certificate.

What is the legal process?

You should apply for a Parental Order, to confer parental rights and responsibilities to you, as the intended parents, within six months of the baby being born. The applicants must be aged at least 18 years old and either be married, in a civil partnership, or co-habiting. At least one of the commissioning parents must be the baby’s biological parent and at least one of the intended parents must live in the UK. Finally, the surrogate mother - and her husband, if applicable - must give their free and unconditional agreement to the order being made.

If any of the above criteria cannot be met the intended parents may have to pursue an application to the Court for an Adoption Order instead.

What if the surrogate mother backs out?

As we have established, any surrogacy agreement you have entered into is not legally binding, and circumstances, and feelings change, so surrogacies can break down. In practice, family courts have proved to be sympathetic to intended parents who apply to have such an agreement upheld. However, the first duty of the Court will always be to act in the best interest of the child.

Do I need a solicitor?

Surrogacy is a delicate process with high stakes, so, it is wise to take professional legal advice before you enter into any such agreement. It is also sensible to have a solicitor on hand when it comes to dealing with the Family Proceedings Court, which will normally involve two hearings. If these result in any complications, your case may be referred to the County Court or the High Court.

For further advice, please contact our specialist Family Solicitors in: